Uttarakhand High Court
Mangat Alias Manga vs Babu Ram And Ors. on 13 November, 2017
Author: Servesh Kumar Gupta
Bench: Servesh Kumar Gupta
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Second Appeal No. 24 of 2004
Mangta @ Manga
.... Appellant
Versus
Babu Ram .... Respondent
and 2 to 15 other non contesting respondents.
Mr. Siddhartha Singh, Advocate for the appellant.
Mr. Rajendra Dobhal, Senior Advocate for respondent.
Judgment reserved on : 10.11.2017
Judgment delivered on : 13.11.2017
Hon'ble Servesh Kumar Gupta, J.
By means of this appeal, the concurrent judgments and orders passed by both the courts below have put under challenge. To appreciate the controversy it is necessary to have a brief sketch of the facts.
The plaintiff-Shri Babu Ram and the defendant no. 1 & 2 Shri Rameshwar Prasad and Shri Ramkishan were all the three sons of Late Shri Atma Ram, thus real brothers. They inherited the property in question from their father equally. The property admittedly is identifiable with Old Khasra No. 72 (New Khasra No. 90) situated in Village Sultanpur Adampur total area 0.072 hec. and consisting of three shops facing towards southern road and behind such shops there were other dwelling units. The details of such property have morefully described in the foot of the plaint.
Plaintiff-Shri Babu Ram launched an original suit no. 139/1993 on 17.3.1993 for partition of his 1/3rd share in the whole of the property claiming the recovery of possession on his share as well. The defendant nos. 1 & 2 who were the co-sharers/real brothers did not turn up to 2 contest while the defendant nos. 5 & 6 contested the suit vehemently because they pleaded to claim their own title over the whole of the property on the basis of two sale deeds. One sale deed dated 25.6.1962 was executed by Shri Ramkishan (the defendant no. 2) in favour of Shri Noora (the father of defendant no. 5) and the sale deed dated 22.5.1963 was executed by Shri Rameshwar Prasad (defendant no. 1) in favour of Shri Mangta @ Manga (defendant no. 6).
The brothers duo viz., the defendant nos. 1 & 2 claiming the absolute ownership over whole of the property executed these registered sale deeds. The certified copy whereof have been filed on the record by these contesting defendants. Out of rest of the defendants who were occupier/tenant either in any of the shops or in any of the dwelling units as aforestated, defendant nos. 3 & 7 contested the litigation while rest of the defendants did not turn up despite of sufficient service. So, the learned Civil Judge (J.D.) Haridwar after considering all documentary and oral testimony produced by the parties decreed the suit on 24.3.2000 with cost and directed to prepare the preliminary decree accordingly.
Feeling aggrieved, the defendants nos. 5 & 6 preferred the FA No. 25/2000 which was also dismissed by the learned Addl. District Judge on merits vide impugned judgment and order dated 24.11.2003.
Challenging both these concurrent judgments, this second appeal has now been preferred only by Shri Mangta @ manga who was the defendant no. 6 before the learned Trial Judge and none other defendant has come forward to assail such verdict.
The Coordinate Bench of this court stayed the operation of both the judgments under challenge and 3 admitted the second appeal on all the three substantial questions of law which were formulated by the appellant in the end of the memo of the appeal. Such questions are as under:
a. As to whether plaintiff's suit ought to have been dismissed in view of mandatory provision of law under Section 3 Read with Article 60, 64, 65 of Limitation Act.
b. As to whether Simplisitor Suit for partition by the plaintiff, who is not in actual and physical possession from the date of execution of Sale Deeds of the year 1962 and 1963, is legally maintainable without seeking relief for cancellation of Sale Deed and physical possession.
c. As to whether finding of courts below are perverse in view of admission made by plaintiff in his plaint.
The learned counsel of the appellant has raised the question of bar of the limitation as described under Section 3 of the Limitation Act, 1963. He has put forth his submissions that for possession of immovable property or any interest therein based on title, the suit could have been initiated within 12 years.
He has also argued that the whole property has already been partitioned between all the three brothers by way of their mutual family settlement and the property under litigation, since fell in the share of defendant nos. 1 & 2 Shri Rameshwar Prasad and Shri Ramkishan hence, they were legally capable to execute the sale deeds as aforementioned. Alternately it has further been submitted that if the partition among the three brothers is not accepted for a moment then also the two brothers were well 4 within their powers to transfer their 2/3rd share by means of these sale deeds and as regards to the 1/3rd share of the plaintiff, the contesting defendants have acquired the title by way of adverse possession and the suit could not have been initiated after more than 30 years when they acquired the title through those sale deeds and are continuing in possession on the part of such property even before the execution of those sale deeds.
In my view, the arguments of the learned counsel of the appellant don't have any substance for the reason that nothing has come out on the record to prove that the property-subject matter of the litigation had been partitioned among the three brothers. The best witness to prove such partition (if any) were the defendant nos. 1 & 2 who never filed their written statement much less putting an appearance and to stand in the witness box for cross- examination.
It has been proved by the plaintiff-Shri Babu Ram by formidable evidence on the record that no partition had ever occurred either by way of formal family settlement or mutual understanding. As regards the applicability of the time limitation, the arguments also do not have any substance for the reason because the limitation of 12 years will start not from the date of execution of the sale deeds but from the time when the possession of the defendant becomes adverse to the plaintiff.
If the defendant nos. 1 & 2 executed these sale deeds without bringing this fact into the notice of the plaintiff then they had done it at their own peril. And equally, if the defendant nos. 5 & 6 have purchased these properties without having been ensured whether the defendant nos. 5 & 6 are the absolute owner or not then 5 also they have taken this risk at their own cost, wherefor the plaintiff cannot be left to suffer.
I think there is no applicability of Article 60, 64 & 65 of the Limitation Act in the matter because such articles are meant for different eventuality. By no stretch of imagination, the possession of contesting defendants or the appellant herein can be accepted to be adverse on one-third share of the plaintiff, because there was no reason for the plaintiff to know the execution of the sale deeds by defendants no. 1 and 2. The plaintiff continued to understand the contesting defendants as the tenants in part of the property notwithstanding leaving the whole property under the landlordship of his real brothers with bonafide belief and faith, or he did not consider it convenient and suitable for him to claim the rent of his portion. This substantial question is answered against the appellant.
As regards the substantial question 'b' the law does not bar to institute a suit by a co-sharer even if he is not in the physical possession because he has instituted the suit not only for partition but also has sought the recovery of possession on his share wherefor he has paid the sufficient court fee.
As regards not seeking the relief of cancellation of sale deeds is concerned, I feel he was not legally bound to seek the cancellation of such sale deeds because firstly these sale deeds were got executed by two other brothers without bringing this fact into his notice and there was no means available with him to know the factum of execution of these sale deeds by his two brothers.
It is also pertinent to mention that these deeds have not been filed in original on the court record but only the certified copy, the secondary evidence, was put up on 6 the record and no reason was highlighted as to why the primary evidence was not produced despite of its availability with the defendants.
Although, no substantial question of law has been formulated on the compliance of Order 41 Rule 31 CPC by the Appellate Court but even though, the learned counsel of the appellant has raised the non-compliance of this provision of the Code vehemently. He has argued that the learned Addl. District Judge has written his judgment without making the strict compliance of this provision.
Reliance has been placed on the law laid down by the Hon'ble Apex Court in the case of M/S Bhanwarlal Dugar and Others vs. Bridhichand Pannalal and Others reported in [2010] SCCR 638 where it has been held that Regular First Appeal is nothing but rehearing of suit and Appellate Court is bound to appreciate evidence available on record and arrive at its own conclusions-It is always open to High Court to remit matter if in its opinion Courts below did not consider material evidence on record.
I think First Appellate Court has decided all the issues/points of determination which were formulated in the suit and has dealt with all these issues substantially.
The Hon'ble Apex Court in case of G. Amalorpavam and Others vs. R.C. Diocese of Madurai and Others reported in (2006) 3 Supreme Court Cases 224 has held that if the Appellate Court has substantially complied the provisions of Order 41 Rule 31 then it is enough. It was held that if it is possible to make out from the judgment of Appellate court that there is substantial compliance with requirement of Order 41 Rule 31 and that justice has not thereby suffered, that would be sufficient. It was further clarified that where entire evidence has been considered and discussed in detail, and conclusions and 7 findings are supported by reasons even though no point has been framed, there is substantial compliance with provisions of Order 41 Rule 31.
Having gone through the judgment of First Appellate Court as well as learned Trial Judge, I think there is no scope of interference. Nothing perversity has been pointed out in the merits as has been discussed by the courts below. So, this second appeal has no force and it is liable to be dismissed with cost.
The appeal is hereby dismissed with cost. It is hereby made clear that since suit was launched in 1993 and the plaintiff is now almost 80 years of age hence, the final decree shall be prepared at the earliest and no unnecessary objections shall be permitted by the Trial/Executing court so that it must be ensured that this octogenarian would obtain the fruits of the decree which he could get after contesting the litigation for nearly three decades.
In exercise of the powers under Order 41 Rule 31, I hold that execution of all these two sale deeds shall remain valid only to the extent of 2/3rd share of the defendant nos. 1 & 2. If the purchasers feel any pecuniary loss on account of partition and parting of 1/3rd property from their possession then they will be at liberty to recover the same from the LRs of the defendant nos. 1 & 2.
Let the LCR be sent back.
(Servesh Kumar Gupta, J.) 13.11.2017 Pooja